Citation Nr: 0922343
Decision Date: 06/15/09 Archive Date: 06/23/09
DOCKET NO. 05-07 441 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Togus,
Maine
THE ISSUE
Entitlement to service connection for a low back disability.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
L. B. Yantz, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 18, 1971 to
February 8, 1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Togus, Maine.
FINDINGS OF FACT
1. Clear and unmistakable evidence shows that the Veteran's
low back disability was present prior to service.
2. Clear and unmistakable evidence shows that the Veteran's
low back disability did not undergo an increase in severity
during service beyond natural progression.
CONCLUSION OF LAW
A low back disability was not incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1153, 5107
(West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304(b), 3.306
(2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002 & Supp. 2008)) redefined VA's duty to assist a
claimant in the development of a claim. VA regulations for
the implementation of the VCAA were codified as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2008).
The notice requirements of the VCAA require VA to notify the
claimant of any evidence that is necessary to substantiate
the claim, as well as the evidence VA will attempt to obtain
and which evidence he is responsible for providing.
Quartuccio v. Principi, 16 Vet. App. 183 (2002). The
requirements apply to all five elements of a service
connection claim: veteran status, existence of a disability,
a connection between a veteran's service and the disability,
degree of disability, and effective date of the disability.
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA
notice must be provided to a claimant before the initial
unfavorable decision on a claim for VA benefits by the agency
of original jurisdiction (in this case, the RO). Id.; see
also Pelegrini v. Principi, 18 Vet. App. 112 (2004).
However, the VCAA notice requirements may be satisfied if any
errors in the timing or content of such notice are not
prejudicial to the claimant. See Pelegrini, 18 Vet. App. at
121.
In this case, in a December 2003 letter, issued prior to the
decision on appeal, the RO provided notice to the Veteran
regarding what information and evidence is needed to
substantiate the claim, as well as what information and
evidence must be submitted by the Veteran and what
information and evidence will be obtained by VA.
The record also reflects that VA has made reasonable efforts
to obtain relevant records adequately identified by the
Veteran. Specifically, the information and evidence that
have been associated with the claims file include the
Veteran's service treatment records, post service treatment
records (with accompanying English translations when
applicable), Social Security Administration records, VA
examination reports, and lay statements.
As discussed above, the VCAA provisions have been considered
and complied with. The Veteran was notified and aware of the
evidence needed to substantiate his claim, the avenues
through which he might obtain such evidence, and the
allocation of responsibilities between himself and VA in
obtaining such evidence. The Veteran was an active
participant in the claims process by authorizing the release
of private medical evidence and providing lay statements and
written argument regarding his claim. Thus, he was provided
with a meaningful opportunity to participate in the claims
process and has done so. Moreover, as
the Board concludes below that the preponderance of the
evidence is against the Veteran's claim, any question as to
an appropriate evaluation or effective date to be assigned is
rendered moot. Any error in the sequence of events or
content of the notice is not shown to have any effect on the
case or to cause injury to the Veteran. Therefore, any such
error is harmless and does not prohibit consideration of this
matter on the merits. See Dingess, supra; see also ATD Corp.
v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
Analysis
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303
(2008). Evidence of continuity of symptomatology from the
time of service until the present is required where the
chronicity of a condition manifested during service either
has not been established or might reasonably be questioned.
38 C.F.R. § 3.303(b) (2008). Regulations also provide that
service connection may be granted for any disease diagnosed
after discharge, when all of the evidence, including that
pertinent to service, establishes that the disability was
incurred in service. 38 C.F.R. § 3.303(d) (2008).
In order to prevail on the issue of entitlement to service
connection, there must be medical evidence of a current
disability; medical evidence, or in certain circumstances,
lay evidence of in-service occurrence or aggravation of a
disease or injury; and medical evidence of a nexus between an
in-service injury or disease and the current disability. See
Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond
v. West, 12 Vet App. 341, 346 (1999).
Every veteran shall be taken to have been in sound condition
when examined, accepted, and enrolled for service, except as
to defects, infirmities, or disorders noted at the time of
the examination, acceptance, and enrollment, or where clear
and unmistakable evidence demonstrates that the injury or
disease existed before acceptance and enrollment and was not
aggravated by service. 38 U.S.C.A. § 1111 (West 2002); 38
C.F.R. § 3.304(b)(1) (2008).
A preexisting injury or disease will be considered to have
been aggravated by active service where there is an increase
in disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disorder. 38 U.S.C.A. § 1153 (West 2002); 38
C.F.R. § 3.306(a) (2008); Paulson v. Brown, 7 Vet. App. 466,
468 (1995). Clear and unmistakable evidence is required to
rebut the presumption of aggravation where the pre-service
disability underwent an increase in severity during wartime
service. Aggravation may not be conceded, however, where the
disability underwent no increase in severity during service
on the basis of all of the evidence of record pertaining to
the manifestations of the disability prior to, during, and
subsequent to service. 38 U.S.C.A. § 1153 (West 2002); 38
C.F.R. § 3.306(b) (2008); see Falzone v. Brown, 8 Vet. App.
398, 402 (1995) (holding that the presumption of aggravation
created by section 3.306 applies only if there is an increase
in severity during service); Akins v. Derwinski, 1 Vet. App.
228, 232 (1991). In addition, temporary flare-ups of a
preexisting injury or disease, even in service, will not be
considered sufficient to establish an increase in severity
unless the underlying condition, as contrasted to the
symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292,
295 (1991), Browder v. Brown, 5 Vet. App. 268, 271 (1993);
see also Daniels v. Gober, 10 Vet. App. 474, 479 (1997).
If a disorder was not noted upon entry into service, the
government must show clear and unmistakable evidence of both
a preexisting condition and a lack of in-service aggravation
to overcome the presumption of soundness for wartime service
under 38 U.S.C.A. § 1111. A lack of aggravation may be
shown by establishing that there was no increase in
disability during service or that any "increase in disability
[was] due to the natural progress of the preexisting
condition." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.
Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). If the
government fails to rebut the section 1111 presumption, then
the claim is one for service connection, not aggravation.
Id.
The United States Court of Appeals for Veterans Claims
(Court) has held that the presumption of soundness upon entry
into service may not be rebutted without "contemporaneous
clinical evidence or recorded history" in the record. Miller
v. West, 11 Vet. App. 345, 348 (1998). The Board notes that
a higher court has clarified the Miller decision by noting
that "[n]othing in the court's opinion suggests that without
such evidence the presumption can never be rebutted,"
emphasizing that any such determination must consider "how
strong the other rebutting evidence might be." Harris v.
West, 203 F.3d. 1347, 1351 (Fed. Cir. 2000).
The Board has reviewed all of the evidence in the Veteran's
claims file. Although the Board has an obligation to provide
adequate reasons and bases supporting this decision, there is
no requirement that the evidence submitted by the Veteran or
obtained on his behalf be discussed in detail. Rather, the
Board's analysis below will focus specifically on what
evidence is needed to substantiate the claim and what the
evidence in the claims file shows, or fails to show, with
respect to the claim. See Gonzales v. West, 218 F.3d 1378,
1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.
App. 122, 128-30 (2000).
The initial question is whether the Veteran's claimed
disability was present prior
to service. In this instance, the report of the Veteran's
November 1971 service induction examination was negative for
any disabilities or defects of the spine. In Crowe v. Brown,
7 Vet. App. 238 (1994), the Court indicated that the
presumption of soundness attaches only where there has been
an induction medical examination, and where a disability for
which service connection is sought was not detected at the
time of such examination. The Court added that the
regulation provides expressly that the term "noted" denotes
only such conditions as are recorded in examination reports,
and that history of pre-service existence of conditions
recorded at the time of examination does not constitute a
notation of such conditions. 38 C.F.R. § 3.304(b)(1) (2008).
In the absence of any clinical findings pertaining to a low
back disability at the time of the Veteran's entrance
examination, the Board concludes, accordingly, that the
presumption of soundness at entrance attaches.
In the current case, the medical evidence of record clearly
and unmistakably shows that the Veteran's low back disability
was present prior to service. In this regard, a March 1970
private treatment record noted that the Veteran had injured
his back at work four days earlier, and that he had suffered
from recurrent backaches prior to the current incident. He
was diagnosed with acute back strain. An April 1970 private
treatment record noted that the Veteran probably had a disc
lesion. An August 1970 VA treatment record detailed an
examination of the Veteran's lumbosacral spine, and noted an
impression of lumbosacral strain. An April 1971 VA treatment
record detailed an examination of the Veteran's lumbosacral
spine conducted in March 1971; on that occasion, the Veteran
complained of low back pain and reported that he had suffered
a strain of his back while working during the winter of 1970
and that he had missed one month of work thereafter; the
examiner concluded that the Veteran was not suffering from
any specific or significant functional or structural
abnormality of the lumbosacral spine and that he was
qualified for military service, profile 1.
As noted above, the Veteran's November 1971 service induction
examination
report was negative for any abnormalities of the spine.
However, on the same
day of this examination in November 18, 1971, the Veteran
noted on a Report of Medical History form that he had had
recurrent back pain, to include back trouble in August 1970.
Almost two weeks later on November 30, 1971, a service
treatment record noted that the Veteran had had low back pain
for two years. Thereafter, a December 1, 1971 service
treatment record showed that the Veteran, who was in his
first week of basic training, complained of low back pain of
a two-year duration (having injured it on the job) and that
he had missed two to three weeks of work in the past year.
X-ray taken at that time were noted by the person reviewing
them as showing no significant bony abnormality, but the
orthopedic clinic physician reviewing them stated that the X-
rays revealed spondylolysis at L5 bilaterally, worse on the
right. The Veteran was placed on limited duty on December 1,
1972, with no crawling, stooping, running, jumping, prolonged
standing or marching, and was subsequently discharged from
service on February 8, 1972.
The medical evidence of record also clearly and unmistakably
shows that the Veteran's preexisting low back disability was
not permanently aggravated by service beyond natural
progress. The Veteran contends that he injured his back in
service on December 1, 1971 during basic training at Fort
Dix, New Jersey, and that he has continued to have
difficulties with his low back since that time. However, the
Board notes that the first evidence of the Veteran seeking
medical treatment following service for his low back is a
statement from the medical secretary for a chiropractor, who
indicated that she was a medical secretary from 1979 to 1985,
that records showed the Veteran sought treatment for his low
back in 1976 and that she was aware that the Veteran
continued receiving treatments until the chiropractor retired
in 1998.
In a February 1988 private treatment record, the Veteran
reported that he had fallen approximately 10 years prior and
had suffered trauma to his vertebrae at that time;
it was also noted that he had been discharged from the
military because of his lumbago, which had worsened and was
associated with an anomaly in structure. In a May 1988
private treatment record, it was noted that the Veteran had
fallen at work in September 1982 and that he had developed
severe lumbago afterward.
In a January 1995 statement, a private physician (Dr. Gozna)
stated that the Veteran's back pain went back to when he was
a "kid" but was aggravated during his military experience.
It was also noted that the Veteran had stated that surgery
was recommended to him back when he was in the military.
In an April 1995 statement, another private physician (Dr.
Abraham) noted that the Veteran's back problems were
apparently the result of a work-related accident.
Thereafter, an April 1995 private treatment record noted that
the Veteran had had troubles with chronic low back pain,
which had been reactivated by a recent injury at work. Later
in April 1995, the Veteran underwent a decompressive
laminectomy (L4 to L5) and fusion (L4 to sacrum), and it was
noted upon entry into the private hospital that he was being
admitted with known work-related injuries to the back. He
was discharged after surgery with diagnoses of chronic
mechanical low back pain, degenerative disc disease, and
spinal stenosis.
In an October 1995 statement, Dr. Abraham noted that the
Veteran had had chronic low back pain due to work-related
injuries prior to his April 1995 surgery. However, six
months after surgery, the doctor noted that the Veteran had
very little, if any, back pain and that he reported feeling
better than he had in years. In a May 1997 statement, Dr.
Abraham noted that one of the Veteran's biggest problems was
multilevel degenerative disc disease consistent with
Scheuermann's disease. It was noted that the Veteran was
relatively young to have this and that such was the reason
why he had required low back surgery. In a March 2002
statement, Dr. Abraham stated that the Veteran was doing well
with his low back area.
The Veteran underwent a VA spine examination in May 2004. On
that occasion, he described an incident in basic training in
which he jumped across a foxhole and landed in a ditch, which
caused a sudden onset of low back pain. However, the Veteran
stated that his April 1995 spinal surgery had been a
"miracle" for his low back. He was diagnosed with
spondylolysis L5-S1 and rotary lumbar scoliosis, and both of
these conditions were noted to have existed prior to
enlistment. The examiner stated his feeling that, in less
than three months of basic training, these two preexisting
conditions were minimally aggravated by physical stress, but
without significantly altering the natural progression or
ultimate outcome of these congenital/hereditary preexisting
conditions. The examiner went on to state that, prior to
service, the Veteran's true diagnosis was missed because
specific X-rays were not obtained until December 1971 during
service.
The Veteran underwent another VA spine examination in April
2005. On that occasion, the examiner reviewed the Veteran's
claims file in its entirety and noted that the evidence
clearly documented that the Veteran had a preexisting back
problem prior to entering the military. The examiner opined
that, after careful review of the available evidence
(pertaining to both active duty and subsequent treatment),
there is no evidence that the Veteran's preexisting low back
pain was permanently worsened or aggravated beyond natural
progress by his active military service from November 18,
1971 to February 8, 1972. The examiner went on to state that
there is no evidence in the service treatment records that
documents any specific trauma, and that it is quite clear
that the spondylolysis noted on the December 1, 1971 X-ray
antedated the Veteran's entrance into the military. Finally,
the examiner concluded that there is no evidence that the
Veteran's two weeks of active duty caused or permanently
aggravated the defect.
The Board notes the July 2005 argument of the Veteran's
representative that the examiner's reference to "two weeks"
of active duty was an error because the Veteran had over two
months of active service. The representative suggests that
perhaps the wrong claims file was reviewed. However, the
specific references in the examination to service treatment
records clearly reflect that the correct file was reviewed.
The reference to "two weeks" active service was made in the
context of the examiner's discussion of the Veteran's service
entrance date of November 18, 1971 and the subsequent finding
of spondylolysis on December 1, 1971, a period of
approximately two weeks. Thus, the examiner had the correct
file and facts before him when rendering his opinion.
To the extent that the Veteran himself believes that his
preexisting low back disability was aggravated by his
military service, the Veteran, as a lay person, is not
competent to provide opinions as to the diagnosis and
etiology of a spinal disability, as such matter requires
medical expertise. See Espiritu v. Derwinski, 2 Vet. App.
492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1)
(competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer medical diagnoses, statements, or
opinions).
The Board further notes the lay statements from the Veteran's
wife and former employer. However, the statement from his
wife notes that he called to advise her he had injured his
back, and the employer's statement detailed the Veteran's
employment and that he returned to work following service
under a waiver due to his back injury medical condition. The
Board notes that neither individual witnessed an in-service
injury, and the service treatment records do not reflect a
specific injury. Thus, less probative weight is assigned to
these statements. Moreover, the history of jumping across
and landing in a fox hole was provided to the May 2004 VA
examiner, and the 2005 examiner noted his review of the prior
examination. Neither examiner found that the preexisting
back disorder was permanently aggravated by service beyond
normal progress.
In sum, the Board finds that there is clear and unmistakable
evidence that the Veteran's low back disability preexisted
service and was not aggravated therein so as to result in
permanent worsening of the underlying disability beyond
natural progress. As the medical opinions of the VA
examiners in May 2004 and April 2005 with regard to
aggravation are accompanied by adequate clinical rationale
and are based upon a review of the medical evidence of
record, they are assigned greater probative weight than the
January 1995 statement by Dr. Gozna, which was unsupported by
any clinical rationale. The Court has held that the value of
a physician's statement is dependent, in part, upon the
extent to which it reflects "clinical data or other rationale
to support his opinion." Bloom v. West, 12 Vet. App. 185,
187 (1999). Thus, a medical opinion is inadequate when it is
unsupported by clinical evidence. Black v. Brown, 5 Vet.
App. 177 (180) (1993). See also Kightly v. Brown, 6 Vet.
App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998)
(medical opinions must be supported by clinical findings in
the record and conclusions of medical professionals which are
not accompanied by a factual predicate in the record are not
probative medical opinions).
For the reasons set forth above, the claim for service
connection for a low back disability is denied.
In reaching the conclusion above, the Board has considered
the applicability of the benefit of the doubt doctrine.
However, as the preponderance of the evidence is against the
Veteran's claim, that doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v.
Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1990).
ORDER
Entitlement to service connection for a low back disability
is denied.
____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs